*840Appeal from award for temporary total disability. Claimant, to some extent intoxicated, came to work late, engaged in an argument with his foreman, was discharged and then had a fist fight with the foreman. He filed an election under section 29 of the Workmen’s Compensation Law to pursue “ his remedy against a third party, to wit: Charles Swartz [the foreman] and Erie Railroad Company [the employer],” and brought action against both his employer and the foreman for injuries received in the fight, claiming an assault. The defense was that the plaintiff was the aggressor and intoxicated. Upon a jury verdict of no cause of action a judgment of dismissal upon the merits was entered. Claimant then asked to have his claim for compensation reopened and an award has been made to him. Award reversed in the interest of justice and claim dismissed, with costs against the Industrial Board. Hill, P. J., Rhodes, McNamee, Crapser and Bliss, JJ., concur.
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